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The implications of the Victim Precipitation Theory in cases of rape, focusing on the approach of the Supreme Court of India towards rape victims/survivors. The paper analyzes the value of a victim's statement in rape cases and discusses various types of rapes and related victim precipitation theories.
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Victim precipitation theory deals with role of victim in actual happening of crime. Recent trend shows that considerable importance is now being given to victim precipitation theory in criminal justice system. Therefore, the question is, whether the theory should be applied in all the cases of violence, including rape with women or rape and alike offences should be kept out of the perview of the victim precipitation theory. So far as the origin and development of victim precipitation theory is concerned, it is clear that to have a more fair and just criminal justice system, one should fairly dealt with roles of offenders and their victims in actual crime happening. The propounders of victim precipitation theory have tried to establish that precipitated offender are merely culpable, potentially dangerous and in need of rehabilitation lest their precipitative tendencies lead to further crimes. Present paper is an attempt to hypothesize the implications of victim precipitation theory in cases of victims of rape. What has been the trend of authorities on victimology on this issue and what has been the trend of judiciary while deciding cases of rape. Whether the theory of victim precipitation has eclipsed the decisions of judges or they have still been sincere enough to show their sensitivity towards a victim of rape and considered their statements as sacrosanct statement or gospel truth. Whether judges' own personality matters in deciding the cases of violence against women? Whether an Indian woman who has been perceived to bear with chastity and shame is still continuing the same trend or has changed the mindset in the era of 21st century globalization. With the help of decided cases on rape and victims' version the paper proceeds to analyze the problem.
Victimolgy, Victim Precipitation, Feminist Criminology and Gospel Truth.
"Always take no for an answer. Always stop when asked to stop. Never assume no means yes. If her lips tell you no but there is yes in her eyes, keep in mind that her words, not her eyes, will appear in the court transcript".^1 2 Rape , a mala in se crime has a chequerred history of interpretation. It has been interpreted as most hated crime, a gender neutral crime, a social problem and as a
Bibha Tripathi*
violent crime. Each interpretation is linked with the views with which woman has been seen and analyzed in a traditional/progressive/feminist/criminological perspective. Criminology as a body of knowledge, regarding crime, as a social phenomenon , is considered to be a development of seventeenth century. From^3 demonological to postmodern criminology, each school is an attempt to understand the etiology of crime, the sociology of law and penology. Victimology is a recent addition of twentieth century dealing with the scientific study of victims of crime. In victimology, the era where all offences were viewed as perpetrated against the king or state, not against the victim or their family is considered as dark age from victim's point of view and the era where victims played a direct role in determining the punishment for actions of another committed against them or their property is considered as golden age from victim's point of view. Victimolgy on the one hand,^4 deals with sanctity of victimhood, the belief that victims are inherently good, honest, and pure, making those who defend them righteous and morally justified and on the other hand, victimology deals with theories of victimology, in victim precipitation theory attempt is made to establish that either crime is caused or partially facilitated by the victim. The term victimology is so wide to include not only the sufferer of crime but also the perpetrator of crimes, because it is a scientific study of victims and victimization, including the relationships between victim and offender, investigators, courts, corrections, media and social movements, in which there is every possibility that each can become either victim or perpetrator in a given context. Feminist Criminology deals with three major dimensions i.e. women as criminal, women as victim of crime and women in criminal justice system. Victims' precipitation theory concentrates on the role of victim in commission of crime. Objectively, its purpose is either to hold victim responsible to some extent or to lessen the responsibility of the Accused. Against this backdrop, the present paper attempts to discern the approach of the Supreme Court of India on rape victims/survivors as to whether the court has been sensitive to the advancement in legal feminism at the global level while dealing with the cases of rape. The present paper attempts to analyze the value of statement given by a victim of rape in India as to how it should be taken as a sacrosanct or gospel truth or simply as bare statement subject to corroborative evidences.
SEXUAL OFFENDERS
So far as sexual offenders are concerned there is no definitive profile. It is not always a dirty old man reading erotica material in the back of a book store, a stranger in dark clothing lurking behind the bushes, a respected priest, and a decorated scout leader? The truth about sex offenders is that each of these individuals fits the profile of a sex offender. In reality, sexual offenders are not just socially displaced strangers. They are 5 more commonly our teachers, our bankers, our fathers, children and friends. Sexual offending crosses the barriers of gender, race, socio-economic status, age, religion and sexual orientation. There is no typical offender and no typical victim. (^3) Edwin H. Sutherland And Donald R. Cressey, Criminology And Criminal Law: Principles of Criminology, the Times of India Press, Bombay, 1968 (^4) Hoyle, C. And Young, R., "Restorative Justice: Assessing the Prospects and Pitfalls", in M. Mc Conville And G. Wilson (eds.) The Handbook of The Criminal Justice Process, Oxford University Press, Oxford, 2002. Cited In Tony Kearon and Barry S. God Frey, "Setting the Science: A Question of History", in Sandra Walklate (eds.) Handbook of Victims and Victimology, William Publishing, 2007 (^5) Fenton Z., "Faith in Justice: Fiduciaries, Malpractice and Sexual Abuse by Clergy", 8 Michigan Journal of Gender Abuse and Law, 2001 at 45, cited in Brent E. Turvey Wayne Petherick, "Sexual Offenders and Their Victims", Forensic Victimology, 2009, pp.445-471, at 446
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11 between victim precipitation and level of resistance by the victim and is concluded as women who are less traditional in their gender-role orientations are more likely to resist than are women who are more traditional. It is submitted by the propounders of the victim precipitation theory that it is not solely the vulnerable situations but also some characteristics of victim behavior which are important in precipitating the offense. It does not make any offender innocent but allows considering some of these men, at least, less guilty and leads to consider that the victim is perhaps also responsible for what happened to her. However, it seems that victimological theorists have adopted the offender's point of view, converted sexist rationalizations into causal explanations, and reinforced sexist legal practices. Situational theorists have ignored gender-role socialization and have often left the impression that a woman's independence increases her vulnerability to rape.
FEMINIST CRIMINOLOGY
Sigmund Freud is considered as traditional criminologist who has not only belittled the gravity of crime against women but also considered them as participis criminis in cases of rape. Freud bequeathed the notion of rape as a victim-precipitated phenomenon. If, as Freud insisted, women are indeed masochistic, rape-either in fantasy or in fact-can satisfy those self destructive needs. Helene Deutsch, a follower of Freud was the major contributor to the view that the female herself is responsible for her own rape. In this view, psychoanalytic descriptions of female psychology were merely descriptions of the male analysts' fantasies about women. Through Sigmund Freud and Helene Deutsch, it could be established that it was not only the victimologists dealing with victim precipitation but also some psychoanalytical criminologists who have dealt with the concept of victim's precipitation. Lombroso has given the theory of born criminals, if applied to women, as victims, it would certainly mean that women victims too are born victims. It is also quite supportive to 14 the victim precipitation theory. Feminists have demonstrated the relationship between trivialization of rape and the cultural view of women as inferior and unimportant. The female stereotype includes the notion of a female vulnerability so great that women who have been raped are viewed as scarred for life, and the victims themselves often live according to this cultural expectation. One of the reasons of non-reporting of rape cases is that the police remain skeptical as to whether she consented.^15 Feminists assert the law of rape does not recognize women's right to sexual autonomy as absolute. Instead, rape law reflects the sexually coercive society in which it operates.^16 Though feminists
(^11) Pauline B. Bart and Patricia H. O'Brien, "Stopping Rape: Effective Avoidance Strategies, 10(1) Journal of Women and Culture in Society, 1984, at 86 (^12) J.B. Miller, (ed.), Psychoanalysis and Women, Penguin Books, Baltimore, 1973; J. Mitchell, Psychoanalysis and Feminism, Random House, New York, 1974; J. Strouse, (ed.), Women and Analysis, Viking Press, New York 1974, cited in Rochelle Semmel Albin, Psychological Studies of Rape, 3(2) Journal of Women in Culture and Sociery, 1977, pp.423- (^13) S. Freud, "Some Psychical Consequences of the Anatomical Distinction between the Sexes", 1925 in J. Stachey (ed.) Standard Edition of the Complete Psychological Works of Sigmund Freud, Hogarth Press, London, 1964; see H. Deutsch, The Psychology of Women: Motherhood, Grune & Stratton, New York, 1944 (^14) See, Lombroso and G. Ferrero, "La Donna Delinquente, Torino, Roux," 1893; Lombroso, "Crime, Its Causes and Remedies," 1911 cited in, Frances Heidensohn, "The Deviance of Women: A Critique and an Enquiry" 19(2) The British Journal of Sociology, 1968, pp.160- (^15) James J. Gobert, "Victim Precipitation", 77(4) Columbia Law Review, 1977, pp.511-553, at 517 (^16) Ann Norton, "Talking Back To Sexual Pressure", Whole Earth Review, 1992, at 111
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have taken strong exception over the work of Amir, a student of Marvin Wolfgang, who applied his supervisor's methodology not only to cases of homicide but also to rape too. It became an iconic target for a number of feminists who renamed victim- precipitation as victim blaming.^17 Amir's application of the concept victim precipitation to rape cases has been roundly criticized^18 and rejected in principle by feminists.
Feminist criminology had a radical change, and it arose in large measures as a protest against the domain assumptions of radical criminology. Women, it was said, were raped, abused and assaulted, and their neglect by male criminologists constituted not only a political and sexist affront but an analytic and empirical gap. It was also described as "unwarranted attack and unfounded ideological criticism", that revealed no flaws in the integrity of the idea of victim- precipitation itself, only in its execution, but damage had been done.^19
Two of the most significant contributions of feminist criminology since the 1970s are the documentation of:-
(1) The significant amount of violence against women and girls perpetrated by men and boys.
(2) How girls' and women's victimizations and trauma, often at the hands of abusive men, are risk factors for their subsequent offending or labeling as offenders.^20
Carol Smart lambasted the way in which women as offenders and victims had been anathematized, and she proposed their reinstatement within an analytic framework emphasizing the workings of patriarchal power and male myopia.
TESTIMONY OF RAPE VICTIM AND OBSERVATION OF
COURTS
In the case of Bodhisattwa Gautam v. Miss Subhra Chakraborty^21 the Supreme Court observe that rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim's most cherished of the fundamental rights, namely, the right to life contained in Article 21. It is an offence committed mostly in isolation from the sight of others and eye witness is seldom available in cases of rape. The evidence of a prosecutrix is considered at par with an injured witness whose presence at the spot is probable. If her sole evidence inspire confidence and not shaken in cross examination or otherwise, it is enough to arrive at a conclusion of guilt.
(^17) Clark, L. and Lewis, D. Rape: "The Price of Coercive Sexuality", cited in Paul Rock, Theoretical
Perspectives on Victimization, Sandra Walklate, 1977 (^18) Weis, Kurt and Sandra S. Borges, "Victimology and Rape: the Case of the Legitimate Victim" 8 Issues in
Criminology, 1973, pp.71- 115 cited in Vicki McNickle Rose, "Rape as a Social Problem: A Byproduct of the Feminist Movement", 25(1) Social Problems, 1977, pp.75- (^19) Fattah, E., "Victimology, Past, Present And Future", Criminology, 2000 (^20) Joanne Belknapsource, "Offending Women: A Double Entendre", 100(3) The Journal of Criminal Law and
Criminology, 1973 (^21) AIR 1996 SC 922
VICTIMS PRECIPITATION THEORY, RAPE AND THE JUDICIAL TREND: A STUDY IN FEMINIST CRIMINOLOGY
testimony. In this case the appellant Ramesher was charged with committing rape on a young girl of 8 years age. The learned judges set aside the acquittal and restored the conviction and sentence. The SC upheld the decision of HC.
The law, which was perceived as almost settled in the year 1952, still remains unsettled due to different approaches of judges regarding the victims of rape. Still there is a great controversy over the victim's statement in rape as to whether her testimony should be regarded as gospel truth or not. Two judges of Supreme Court opine two different views on a same day in different occasions.^27 Speaking on strengthening of laws to tackle crimes against women while addressing a seminar on 'Improving Criminal Investigations' the then Chief Justice of India Justice P. Sathasivam said the statement of a rape survivor should be enough to secure conviction. He was of the opinion that "In our country, no girl will go to the police station and say she was raped by this man. When it comes from the heart, the presiding officer should accept her testimony and conviction can be based on it". Whereas, A bench of justices H.S. Bedi and J.M. Panchal said while primacy has to be given to victim's statement, there can be no presumption that she is telling the ultimate truth as the charge has to be proved "beyond reasonable doubt" as in any other criminal case. They opined that we are conscious of the fact that in a matter of rape, the statement of victim must be given primary consideration. But, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully.
Against this backdrop, the paper mentions some of those cases in which it has been shown that it is the judge particular that turns the settled position into unsettled 28 situation. For example, In State of HP v. Raghubir Singh the bench of Dr. A.S. Anand and N.P. Singh held that conviction can be recorded on the sole testimony of the proscutrix if her evidence inspires confidence and there is absence of circumstances which mitigate her veracity. Further, in State of Punjab v. Gurmit Singh^29 the court held that in cases involving sexual harassment, molestation etc. the court is, duty bound to deal with each cases with utmost sensitivity. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. 30 In the case of State of Punjab v. Gurmit Singh & Ors the bench of Dr. A.S. Anand and S. Sagir Ahmed observed that crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victim of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim; a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or
(^27) The Hindu, 9th February, 2014 (^28) (1993) 2 SCC 622 (^29) (1996) 2 SCC 384 (^30) Ibid.
VICTIMS PRECIPITATION THEORY, RAPE AND THE JUDICIAL TREND: A STUDY IN FEMINIST CRIMINOLOGY
insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Justice Anand also held that, a girl, in a tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down upon by the society. In this case duty of court during cross examination of the victim of sexual assault was also highlighted. Further, J. Anand expressed strong disapproval of the approach of the trial court and it's casting a stigma on the character of the proscutrix as "a girl of loose morals or such type of a 31 girl." In the case of Ranjit Hazarika v. State of Assam^32 the Supreme Court again observed that the court must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to
(^31) Id., at 401 (^32) (1998) 8 SCC 635
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In the instant case, the accused had committed rape, which repels against moral conscience as he chose a girl of 11 year to satisfy his lust and subsequently murdered her, who had gone alone from her house at about 5:30 P.M on 5/3/2002 to prepare cow-dung cakes in the cremation ground of Jatavs'. The followers of victim precipitation theory may argue that since she had gone alone therefore she was raped. The law on the issue whether a conviction can be based entirely on the statement of a rape victim has been settled by this court in several decisions^37 and could be concluded as "Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix." Contradicting with the cases on relying over the sole testimony of the victim, the 38 bench of R.V. Ravindran and B. Sudershan in Radhu v. State of Madhya Pradesh observed that, the court should, at the same time, bear in mind that false charges of rape are not uncommon; there have also been rare instances where a parent has persuaded a gullible or obedient daughter to make charge of a rape either to take revenge or export money or to get rid of financially liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case. Observed that, the court should, at the same time, bear in mind that false charges of rape are not uncommon; there have also been rare instances where a parent has persuaded a gullible or obedient daughter to make charge of a rape either to take revenge or export money or to get rid of financially liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case. In Rajoo & Ors v. State of M.P^39 the Supreme Court had the occasion to observe that the evidence of the prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement, at best, is adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication. 40 In Tameezuddin alias Tammu v. State H.S. Bedi and Aftab Alam observed that it is true that in a case of rape the evidence of the proscutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. In Dinesh Jaishwal v. State 41 of Madhaya Pradesh the Supreme Court observed that, though evidence of the victim prosecutrix is liable to be believed save in exceptional circumstances, but to hold that a proscutrix must be believed irrespective of improbabilities in her story, is unacceptable. In State of HP v. Mano Singh^42 the court held that testimony of the prosecutrix is not
(^37) State of Haryana v. Basti Ram AIR 2013 SC 1307 (^38) (2008) 2 SCC (Cri) (^39) AIR 2009 SC 858 (^40) (2009) 15 SCC 566 (^41) (2010) 2 SCC (Cri) 60 (^42) 2011 Cri.L.J. 121 HP
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inspiring confidence and prosecution case becomes doubtful in view of the observation of SC made in Radhu's case. Here, the court observed that if victim proscutrix of 16 year of age was alone at the time of occurrences and she appears to have consented for the sexual interaction with the accused respondent, therefore the appeal was dismissed. The decision of State of UP v. Munesh was adverted to and 43 followed in State of Rajasthan v. Meena. In this case the judgement was delivered by the bench of A.K Patvaik and Chandramauli Kr. Prasad. The bench opined that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely, wholly reliable, wholly unreliable and neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration, this principal applies with greater vigor in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option then to acquit the accused. In the background of the aforesaid legal position, the court considered that the statement of the prosecutrix was wholly unreliable because at the time of cross examination she could not explain the discrepancy in her statement. Therefore the court upheld the decision of acquittal of the accused by the trial court.
The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weigh but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. Therefore the convict appellant was given the benefit of doubt and accordingly he was acquitted of the charge and set at liberty.
CONCLUSION AND SUGGESTIONS
A first step towards including rape in a psychology for women is correction of the biased manner in which mental health professionals have designed rape research. Such a methodological change would indeed be revolutionary. After a scientific revolution, many old measurements and manipulations become irrelevant and are replaced by others instead. In order to achieve this, scientists must acknowledge such bias as a scientific and methodological issue and not only a feminist one. The hope is that, as the methodologies change, the paradigms change, and the world itself changes with them.^44 Victim Precipitation theory in case of rape could be seen as statements made by Abhijeet Mukherjee and Others after the famous Nirbhaya's rape case means applications of victim precipitation theory in rape will only ridicule
(^43) 2013 (2) SCALE 479 (^44) T. S. Kuhn, "The Structure of Scientific Revolutions", 2nd ed. University of Chicago Press, Chicago, 1970
VICTIMS PRECIPITATION THEORY, RAPE AND THE JUDICIAL TREND: A STUDY IN FEMINIST CRIMINOLOGY